Submitted By: Mike Spindell, Guest Blogger
Many blogs have been written here that deal with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or being people of color. This piece is not about the “War on Drugs”, but this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today. Because the “War on Drugs” provides context for this subject I’ve included links at the bottom that supply the context behind my opinions here. Human Rights Watch produced a report this week about how most defendants in Federal drug cases are forced to plead guilty under the threat of the imposition of a mandatory sentence. I read an article in Huffington Post referencing this study and it immediately brought to mind two aspects of law enforcement and prosecution today that raise my ire.
The first is the process of plea bargaining, which I believe makes a mockery of our Criminal Justice System. The second is the concept of Mandatory Minimum Sentencing (MMS) which in my opinion leads inevitably to miscarriages of what we would like to call justice. The idea of negotiation, bargaining if you will, is that each of the two sides has the ability to provide enough of value to be able to establish a mutually beneficial contract. Clearly though when it comes to a Prosecutor bargaining with a defendant there is, except in the case of the wealthy/powerful, an unequal negotiation. The Prosecution has the authority and resources of the State backing it up. Most defendants and indeed most people in prisons, have little resources. In the public’s (thus jury’s) mind, most defendants are really guilty until proven innocent, despite the “presumption of innocence” that is supposedly a hallmark of our legal system. Adding immeasurably to the Prosecution’s resources are “Mandatory Minimum” sentences (MMS). They were instituted by legislators who wanted to appear “tough on crime” and so represent drastic solutions to punishment needs, in order to appear as “tough” as possible. With the trump card of MMS prosecutors are in a position to threaten a defendant to “cop a plea” to avoid a more draconian prison sentence. The Human Rights Watch study shows how these two procedures have become a feature of American Criminal Justice that in my opinion makes a mockery of it.
“Only 3 percent of U.S. drug defendants in federal cases chose to go to trial instead of pleading guilty in 2012, according to a new report from Human Rights Watch.
The small number begins to make sense if you consider the consequences faced by drug defendants convicted in court, argues the report’s author, Jamie Fellner.
“Prosecutors can say, ‘Take these 10 years or, if you get a trial and are convicted, you’re going to look at life,’” said Fellner, an attorney who specializes in criminal justice issues at Human Rights Watch. “That’s a pretty amazing power that unfortunately they are more than willing to wield.”
The effect, she argues, is that prosecutors essentially “force” defendants to plead guilty.
Last year, drug defendants in federal cases who went to trial and lost were sentenced to more than three times as many years in prison as those who took a plea, according to the report’s analysis of data from the United States Sentencing Commission, a government agency.
And the majority of those who did go to trial — 89 percent of them — lost.” http://www.huffingtonpost.com/2013/12/05/drug-defendants-plead-guilty_n_4387290.html
In my opinion the premise that underlies the concept of the “plea bargain” is a faulty one. The justifications used by prosecutors invariably center around the heavy burden of cases they must “clear” and the lack of court resources available. Plea Bargaining is seen as a way of making due with an inadequately funded and staffed judiciary system. It simply doesn’t make sense that a country that takes exceptional pride in its supposed Democracy and Justice, under-funds one of the basic needs of a truly balanced justice system. Why do we have a court system that lacks the funds it needs to provide the right to a fair and speedy trial? How do we look askance at human rights violations in other countries, when in our own human rights are denied to those who would seek a fair and speedy trial, because the country refuses to apply the resources needed to provide a fully operational court system?
In order for the “plea bargain” to be an effective tool for prosecutions by the government there has to be something behind the prosecutions threat that will strike terror into the heart of even an innocent defendant and cause them agree to plead guilty to charges where they might not be guilty. In the ever increasing spate of “conspiracy” cases the prosecution also gets leverage to get one of the presumed “conspirators” to turn on their companions. Conspiracy prosecutions have been around for a long time and have historically been used by the government deal with groups the powers that be consider noxious. Most laws that have expanded the reach of criminal conspiracy prosecutions, such as the RICO laws http://ricoact.com/ , have been used by prosecutions to also attack political groups, corporate entities and even the Roman Catholic Church. Like many other laws that in my opinion demean our Constitution the RICO laws were first signed into law in 1970, with the express purpose of dealing with organized crime, specifically drug dealers. While conspiracy prosecutions have been around for a far longer time and were used in our history to attack “radical” political groups and the nascent Labor Movement, RICO became conspiracy on steroids. It would be helpful here to see the definition of conspiracy:
“An agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal. Most U.S. jurisdictions also require an overt act toward furthering the agreement. An overt act is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005). The illegal act is the conspiracy’s “target offense.” http://www.law.cornell.edu/wex/conspiracy
Today, conspiracy prosecutions in many jurisdictions don’t even require that the “conspired act” is committed, only that there was a “conspiracy” to commit it and that a step was taken to actually further the plan. American history has shown that conspiracy prosecutions have turned on a group of people talking about committing a violent act and one of them purchasing something that could have advanced the plan. One of the most famous conspiracy prosecutions in our history ended with the executions of Julius and Ethel Rosenberg during the “Cold War”. Where Ethel the wife was executed even though there was little evidence she was a party to the alleged conspiracy. http://en.wikipedia.org/wiki/Julius_and_Ethel_Rosenberg
Back to my main point though, since conspiracy charges are only one of the “tools” used by prosecutors to obtain “plea bargains.” By far the most effective “club” wielded by prosecutors today is Mandatory Minimum Sentencing.
“The percentage of defendants in 2012 who fought their charges is likely an all-time low. In 1980, the first year for which the report reviewed the relevant data, the percentage of federal drug defendants who pleaded guilty was slightly more than 60 percent, and it has risen steadily since then.
The advent of mandatory-minimum sentencing laws in the mid-80s is largely responsible for the steady increase in guilty pleas, according to Fellner. Such laws required judges to impose harsh, predetermined sentences on people convicted of the distribution and, in some circumstances, possession of illicit drugs, while giving prosecutors the ability to offer defendants smaller sentences as part of a deal.
“If you can get someone to acknowledge guilt without the burden and expense of a trial, without having to marshal witnesses and line up witnesses, and without risking an acquittal, why not?” said Fellner. “You don’t have the cost of a trial, it doesn’t take the time and resources, and it increases the notches on your belt of how many convictions you’ve gotten.”
But in reality, the government lacks the resources needed to try everyone who is charged with a drug offense, said Steven Jansen, the vice president and chief operating officer of the Association of Prosecuting Attorneys, a professional group based in Washington.
“Justice would almost stand still if we took the majority of our cases to trial,” he said.” http://www.huffingtonpost.com/2013/12/05/drug-defendants-plead-guilty_n_4387290.html
The United States has the highest incarceration rate in the entire world. You can follow this link to see the list by country: http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=all&category=wb_poprate
The evidence clearly shows that this incarceration rate is due to the failed “War on Drugs” and the burden of those laws fall most heavily on the poor and people of color. In my view this is a sorry state of affairs for a country that we used to take pride in as the bastion of freedom. This degradation of our Criminal Justice System has come about because of a confluence of factors that range from a Prohibition Agent seeking continued employment : http://jonathanturley.org/2013/11/09/our-insane-war-on-drugs/ ; to the rise of a “Police State” mentality in our Justice System: http://jonathanturley.org/2013/11/09/police-state-america/ ; and to America’s lasting legacy of slavery, racism: http://jonathanturley.org/2011/11/26/the-incarceration-of-black-men-in-america/ . Added to those factors is the fact that being a prosecutor has often been a stepping stone to higher political office, especially if one can get cases that show the prosecutor as being “tough on crime”, as in this case: http://jonathanturley.org/2013/01/26/carmen-ortiz-prosecution-for-political-ego/ Finally too, as with most things in this country, it comes down to the profit to be made by the privatization of the prison system and the need to ensure that our prisons meet their bed count quota : http://jonathanturley.org/2013/09/22/lockup-quotas-and-low-crime-taxes-helping-to-make-money-for-the-private-prison-industry/ However, underlying all of this and driving this system is in my opinion one major factor.
In our country we seem to want justice on the cheap. Historically, our court systems have been underfunded and understaffed. We as a nation pride ourselves on our justice, yet we consistently refuse to fund the very basis of our Justice System, our Courts. I don’t have to present any evidence for the reader to understand that the idea of obtaining a fair and speedy trial doesn’t represent the reality in America. This is true whether in criminal or in civil cases. Why is this so?
My belief is that our courts are undermanned and underfunded because it suits the needs of those in power. Those with vast wealth in our country rarely are brought to trial and when they are somehow the system works quicker on their behalf. Many Americans can’t even imagine that they would ever be criminally prosecuted and so pay little attention to the justice system, except when a sensational trial drives their attention. Therefore no politician ever got elected campaigning for more money for the courts. This is not some secret that I’ve discovered, but as you can see from the quotes above the delays in our justice system are not only spoken of as facts, but are used for justifications to shortcut its workings. Obviously, my solution to this is to put the money necessary into our courts. Beyond that though I believe it is time to end the insane “War on Drugs”, which is really a “War” on the poor and people of color. I believe that we should get rid of Mandatory Minimum Sentencing because it is not a deterrent and is an abomination of justice. I believe RICO should either be reformed or repealed as being beyond the intent of our Founding Fathers in the Constitution. I further believe that the offices of those who would be our prosecutors should be removed as “stepping stones” for higher political office. Prosecution can be a noble profession, but to be so must attract those of nobler intent, which in my opinions has become a rarity today. What do you think?
http://jonathanturley.org/2013/06/29/obama-and-the-war-on-drugs-hypocrisy-in-action-2/
http://jonathanturley.org/2013/08/25/propaganda-106-waging-war-a-case-study/
http://jonathanturley.org/2013/03/09/swat-is-america-coming-under-martial-law/#comments
In some ways our current justice system is very similar to slavery. The 1% have ultimate control over the poor and disenfranchised and wield their power punitively without regard or empathy. If every defendant in the system insisted on going to trial, the entire system would grind to a complete stop…..but the system is designed to make even the thought of going to trial so scary that far too many innocent people take a plea deal in an effort to have a measure of certainty in their life and be able to realistically make plans to move forward when they are released.
Much truth therein. A plea, however, is often a better route than a trial when the proof is evident and the presumption of guilt is great.
LawyerChuck – However, should not the plea be for guilty of the acknowledged crime and not of a lesser crime? Should a lesser punishment be the bargaining chip.
Teach those kids to keep a list of lawyers from different fields of expertise close by, etc….
I recently heard this guy speak & he sounded interesting on the subject teen/young Americans in criminal trouble & dealing with the current system.
http://dwidude.com/
Along with getting rid of Mandatory Minimum Sentencing I think Private For Profit Prisons should be outlawed.
RICO is a larger issue of piling on, but I think it a useful tool against those in govt & major financial firms. Where/how the line is drawn I’m not sure.
What I am sure of is that 4th,5th,6th,7th,8th grade schools kids need educated to the basic elements of the legal system that they’ll soon encounter.
Maybe a few trips to the local court house. Teach them about their 1st Amd Right to Shut the Heck Up. Teach them about their 5th Amd Right, that regardless if they are innocent or guilty “There is Nothing they can Say that Will Help Them & Everything Will Be Used Against Them.”
http://www.abajournal.com/news/article/inadequate_public_defender_programs_in_2_cities_violated_individuals_rights
Hint: stop declaring war on problems and instead fix them. This is not rocket science, but does run awry of Call Time and other ridiculous money-chasing events all elected pols convince themselves they must do Or Else. Very few indeed are qualified to run this government in our complex world.
Declaring war is the scatter-shot of humans unwilling to self-examine.
Carlyle Moulton 1, December 7, 2013 at 9:27 am
Individual people act from multiple motives and different people operate from different motives so there are more than one motive behind the war on drugs but one of them is hate.
…
America is proud of its record of upward social mobility …
===================================
There isn’t much to be proud of now that it is a plutocracy rather than a democracy, with a plutonomy rather than a working class economy:
(Washington Post). Your comment has a lot of interesting and useful info … thanks.
Meanwhile:
http://www.rollingstone.com/politics/blogs/taibblog/another-batch-of-wall-street-villains-freed-on-technicality-20131204
I thought that is the realty in a fascist society; those with the money win. The rest of us, not so much.
As Dred notes, the militarization of our police is causing a police state and I add that this is one of the core aspects of fascism.
FYI: the prisons were full long before they were privatized.
Caryle – I so not see this from those I’m acquainted with and I see racism from many sides. It is more a socio-economic situation in my opinion. More poor whites are in prison as well, than rich whites or blacks. It is much easier to place poor people in jail as the wealthy have historically bribed the system through attorneys and judges as the do with DUI and ticket fixing.
It is the system that is causing 99% of the problems and the policies are not likely motivated by racism. Some of the policies were created in my opinion to quell dissension but that is another huge issue to quantify.
Individual people act from multiple motives and different people operate from different motives so there are more than one motive behind the war on drugs but one of them is hate.
White Americans have not yet forgiven Negroes for slavery and one of the main preoccupations of white people of the respectable classes is keeping the Nigger from getting uppity. America is proud of its record of upward social mobility but one of the greatest efforts of white Americans was and is to prevent any of this valued upward social mobility falling in to the hands of Blacks.
After the end of the Civil War there was a short period called reconstruction in which Blacks made economic and political progress while the South was under the supervision of the Federal Government. However the Federal Government withdrew from the South and whites regrouped to get Dem Niggers back under control. The tool was a law that made it a crime for a Black person to be unemployed in fact if the Negro was not working for a White master he was deemed to be a vagrant and that was a crime for which he would be imprisoned and then leased to white employers for a pittance. Once leased he was effectively a slave for life since if he ceased working to the master to whom he was leased he was again a vagrant and liable for conviction. Two other policies were used to prevent Negroes having the benefits of citizenship, they were Jim Crow and lynching Jim Crow consisted on restrictions on Blacks voting that were not applied to whites.
The plight of Negroes in the US remained miserable until the civil rights movement of the ’50s and ’60s. Again for a while Blacks made social and economic progress, but again there was a White backlash against this progress. The backlash was the war on
drugsNiggers announced by Richard Nixon but not actually commenced until the reign of Ronnie Ray Gun. The Ray Gun administration spread propaganda about evil black crack addicts and crack whores having crack babies. The cocaine that destroyed the Black underclass was at least in part supplied by the CIA the planes of which flew to Central America carrying guns for the Contra terrorists and returned carrying cocaine to sell in the ghettos to fund the Contras. The 100 to 1 disparity between sentences for Crack as against powder cocaine was aimed at Blacks who smoked crack because it was a cheaper way to take cocaine than sniffing it up the nose.The thing about laws against normal human behavior such as sex, drugs, rock and roll is that there are so many breaches of the laws that only a tiny fraction can be detected, charged and prosecuted. Any law gives the authorities scope to look diligently in some places and not in others but with laws against normal human behavior it is possible for this selection to become extreme without the majority realizing it. Police do not go trolling for drug sellers and users in the leafy suburbs where respectable white people live, instead they concentrate on the “high crime” areas where poor Brown people dwell and its like shooting fish in a barrel.
The anti drug legal system operates in stages, investigation, arrest, charging, negotiating plea bargain and sometimes trial. At every stage of the process Blacks are treated more harshly than whites this discrimination compounds up the chain of steps resulting in the fact that most prisoners are black even though they are only 11% of the population. Respectable Whites look at the statistics of convictions and incarceration and conclude that the heavy policing in Black areas is justified and assume that Blacks must break the drug laws much more frequently than do whites when in fact the rates of Black and White drug use are nearly the same.
The US has committed itself to far more law and order than it can afford. The sensible response would be to recognize this and to trim the law down to a size that can be afforded, but that is not what the US has done. Instead it has placed the burden of handling too much law on the backs of poor accused who have to choose between a sentence of x years by accepting a plea bargain or risk going to trial with an 89% chance of being convicted and copping a whopping mandatory minimum sentence of 3x to 5x years. As I understand it a plea bargain is not final until the defendant tells the judge that he has accepted the plea of his own free will and has not been in any way coerced into accepting it which of course is absurd as if the threat of the 89% probability of 3 to 5 times the plea bargain sentence is not coercive.
What is needed is a criminal defendants plea bargain strike which forces the system to take 100% of cases to trial which will break it, however lawyers each representing an individual client would prevent this as a lawyer does not see himself as representing the interests of all defendants, just his one client and the devil take the rest of them.
Another possible remedy is a system where the jury is informed of the offered plea bargain and its sentence and the sentence on conviction of the trial charges and the conviction rate at trial. I really wonder how many fair minded juries would find guilty if they new these figures..
Don’t accuse Mike S of being a “lily livered librul.”
Even the conservative Wall Street Journal is not blind to the obvious metamorphosis:
(Will The Military Become The Police? – 4, quoting WSJ). A lot of the accused never get the opportunity to do a plea bargain, just a plea “don’t taser me bro.”
Usually to no avail.
“Many blogs have been written here that deal with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or being people of color … this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today.” – Mike S
It was the dynamic that opened the door to the war on the people because the police forces began to be trained that they are in a war.
They began to dress like soldiers in a war zone, acquire tanks and SWAT teams, and eventually to treat the people as if they were enemies in occupied territory.
Oops typo:
** How many retired former Detroit city Prosecutors, Judges, Court Clerks, etc… are taking an 80% cut on their pensions now? **
Another one. How many more people?
(Warning don’t look at to many of these case, there horrible & can mess with your/our minds)
Nice piece Mike S.
I like the way you laid out what the issue was up front & then walked through it instead of like some do & keep the issue a mystery until the end.
And regarding the issue at hand, whether one believes TPTB have conspired to use the war on drugs as a piece in the grand design to destroy this nation or it was an accident of fools in leadership, the end result is that it has been key to ushering in a gestapo/stasi type authoritarian police state that is collapsing the nation.
How many retired former Detroit city Prosecutors, Judges, Court Clerks, etc… are taking an 80% on their pensions now?
Some may recall I posted earlier this week a piece that had over a 1000 top US economist, (Some no doubt with only one arm, wink), that stated publicly the US govt is currently in far worst finical shape the Detroit.
As I mentioned last night Prosecutors, Judges, everyone should prepare for the Great Leveling that seems just ahead.
If we’ve learned nothing else from history, the American pioneers, the Donner Party, taught us to eat the Fattest (Wallst Banker/Insurance Co’s) First. 🙂
After all they are the continued source of the drug war & most every other problem.
http://www.newsweek.com/hard-lesson-motown-they-will-steal-your-pension-210401
Yes, keep this torch burning. We also have a new one now with the ‘War on Terrorism’. 9/11 was contrived but has now led to real non-government terrorism in the form of the recent Nairobi attack & probably Madrid too. The merchants of chaos are very busy.
So logically harsh mandatory minimum sentences lead to more plea bargains, by defendents worried about losing at trial even if innocent.
Reblogged this on ActivistPoster.
Excellent article Mike. We might have to raise taxes on the wealthy in order to properly fund the court system and we can’t bite the hands that feed their reelection campaigns.
Drug Laws = Full jail cells in private prisons
We gotta be #1 at something…